Discussion:Claiming Qualifying Relative (Before Notice 2008-5)

If the person for whom the person is the Qualifying Child, is also your Qualifying Relative, can you now claim both. Per Table 5 Pub 501, "You cannot claim any dependents if you, or you spouse if filing jointly, could be claimed as a dependent by another taxpayer."

Example: Boyfriend, girlfriend live together all year. Not against local law. She has children, not his. She has no income. Her children are her Qualifying Children so he could not claim them. However, due to the fact that she is boyfriend's dependent (Qualifying Relative) she cannot claim any dependents.

Your example scenario is surprisingly complex, so if you have a specific question, please spell it out and you're more likely to get responses.

In 2005 a dependent is either a Qualifying Child or a Qualifying Relative - period. Unless BF adopts or fosters GF's children, the kids are clearly not BF's Qualifying Children. So we have to concentrate on the Qualifying Relative path to determing whether BF can claim them as dependents.

Let's assume that all the other criteria for QR are satisfied (member of household, gross income, and support tests). A child is not a QR if s/he "is" anybody's QC. This is spelled out in plain English. What is not spelled out is whether the intent is that some other taxpayer is treating the child as a QC for tax purposes.

I think you could make a case that if GF is not claiming the children as dependents - i.e., not treating them as her Qualifying Children - then BF can treat them as Qualifying Relatives and, thus, dependents.

But this is at the ragged edge of a new tax law. Trying to discern the intent of a new tax law without applicable precedent is risky business. The IRS is unique in its strictness in interpreting the letter of the law.

For years we have denied the signifigant other because "they were living in sin" but, what two consenting adults do in the privacy of there own home is not a violation of any law I am aware of. (Prior career was law enforcement).

Doesn't QC refer to EIC. If the income applies, the mother of the child would not be able to take the child if the BF supports the kids and makes more income than the GF even if she makes enough for it to be taxable.

Read the 2005 edition of Pub 501, as Ron did, and I think you'll agree that the old, simpler, reasoning you're using is no longer valid. (The link goes straight to the relevant section of the Pub.)

Since the girlfriend has less than $3,200 in gross income, she is automatically treated as a qualifying relative of the boyfriend and she will not be able to claim the children as dependents; however, she will qualify for the earned income credit if she has any earned income at all.

a $4,000 loss on K-1? She did not file any form 1040. Can i claim GF in this case?

Well, I thought I should cover myself, so I wrote a letter and said daughter is not a dependent, but she was listed as qualifying child for purposes of HOH.

Now IRS sent another letter acknowledging my letter and saying that taxpayer should file an amended return! I am ready to give up and since the IRS is not changing any of the numbers on the return and not disallowing the HOH status (as far as I can see) should I just forget the whole incident?

Am I missing something here?

Elissa Kirkegard

Facts:

BF/GF have twins in 2007. Both are working very little (depend on support from family to survive) but they are looking forward to a large EIC since they are "poverty stricken" and have twins to support.

BF will have W-2 wages of <3200.00 I am sure for the year GF will have w-2 wages of <3200.00 I am sure for the year Twins have BF's last name as their own but live with both parents Father/Mother/Grandparents of GF have provided virtually ALL the support for all 4 persons throughout 2007 but will graciously allow them to file returns and claim themselves and twins so that they can essentially take advantage of the EIC and tax credits.

In this scenario, who would be filing HOH and claim the children for EIC and HOH purposes? Neither BF nor GF will need to file based on their income and personal exemption, but they want $$$ from the government in the form of an EIC so that they can live off the poor slobs who support this ridiculous credit....

Sorry; it actually is a ? but angers me when people are trying to get something for nothing....

Were these my returns, I would certainly make notes that I quizzed the clients how they live on such meager income and their answers.

GF and her child and BF, not related live in same household all year. BF provides most support, made $10,000. GF made $3,000, $80 w/h, wants to file. Both come to you for advice, so how should/must they file?

What if GF has NO income, but BF pays to put the child in daycare. Can he claim the dependent care credit while she does something else?

I'm not sure if I should follow the spirit of the credit, or the technical rules that seems to me to say it's OK to claim the credit for both fo the above situations.

Yes, the daughter claimed herself. So to claim HOH now, the qualifying child has to be below a certain age?

The IRS clarification examples also give where GF file to get EIC, disallowing BF to claim a QC. In this example, GF is a dependent regardless, cannot claim a dependent or EIC, so BF should claim both. Not a matter of choice. Similar to rule where parents don't take exemption for dependent student still does not allow student to take his own.

T/P has non-related 55 yr old living with them. My understanding to claim person must meet all of the following requirements:

1. Be a member of the your household for the entire year.

2. You Provide more than 50% of their support.

3. Member's gross income is less than the personal exemption amount:

    a.  2008 - $3,500
    b.  2009 - $3,650
    c.  2010 - $3,650

4. Qualifies as a US Citizen.

5. Cannot be claimed as a dependent on someone else's return or take the personal exemption on their own tax return.

Is this correct?

The taxpayer must not qualify as a dependent in order to claim another dependent. (The fact that a TP is actually claimed or not is irrevelant. Example, where parents forego claiming the exemption so child gets tuition credit; child is still a dependent, does not get own exemption.)

If your #5 was in reference to the dependent:

The 55 yr old (assuming not disabled therefore would not be a TP's qualifying child), could only be a qualifiying relative of some TP. And mathmatically, only one TP can provide over 50% support, therefore only one TP if any has the rightful claim (multiple support agreement aside).